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EXHIBIT 10.34
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MASTER SITE COMMITMENT AGREEMENT
BETWEEN
NEXTEL COMMUNICATIONS, INC.,
NEXTEL OF NEW YORK, INC.,
NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.,
NEXTEL SOUTH CORP.,
NEXTEL OF TEXAS, INC.,
NEXTEL WEST CORP.,
NEXTEL OF CALIFORNIA, INC.,
TOWER PARENT CORP.,
SPECTRASITE HOLDINGS, INC.,
AND
TOWER ASSET SUB, INC.
Dated as of April ___, 1999
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MASTER SITE COMMITMENT AGREEMENT
THIS MASTER SITE COMMITMENT AGREEMENT (this "Agreement") is
made as of the ___ day of April, 1999, by and among Nextel Communications, Inc.
a Delaware corporation ("Nextel") (a party hereto solely for the purposes of
Section 2.1(a) hereof), Nextel of New York, Inc., a Delaware corporation,
Nextel of California, Inc., a Delaware corporation, Nextel of Texas, Inc., a
Texas corporation, Nextel South Corp., a Georgia corporation, Nextel West
Corp., a Delaware corporation, Nextel Communications of the Mid-Atlantic, Inc.,
a Delaware corporation, and any other subsidiary or controlled Affiliate of
Nextel designated by Nextel as a Transferring Subsidiary in accordance with
Section 2.1 (individually a "Transferring Subsidiary" and collectively the
"Transferring Subsidiaries"), Tower Parent Corp., a Delaware corporation
("Parent Co.") (a party hereto solely for the purposes of Section 2.4 hereof),
SpectraSite Holdings, Inc., a Delaware corporation ("Tower Aggregator") (a
party hereto solely for the purposes of Section 2.5(c) hereof), and Tower Asset
Sub, Inc., a Delaware corporation ("Tower Sub").
RECITALS
A. Nextel, the Transferring Subsidiaries, Parent Co., a
wholly owned subsidiary of Nextel, Tower Merger Vehicle, Inc., a Delaware
corporation and wholly owned subsidiary of Parent Co. ("Merger Sub"), Tower
Sub, Tower Aggregator, SpectraSite Communications, Inc., a Delaware corporation
and wholly owned subsidiary of Tower Aggregator ("SCI"), and SHI Merger Sub,
Inc., a Delaware corporation and wholly owned subsidiary of SCI ("SHI Merger
Sub") are all parties to an Agreement and Plan of Merger dated as of February
10, 1999, as amended (the "Merger Agreement"). The Merger Agreement provides
for (i) the transfer of certain Tower Assets (as hereinafter defined) located
at the Merger Sites (as hereinafter defined) by the Transferring Subsidiaries
to Parent Co. and the further transfer of those Tower Assets from Parent Co. to
Tower Sub and (ii) the merger (the "Merger") of SHI Merger Sub with and into
Merger Sub, with Merger Sub the surviving corporation of the Merger. In
connection with the Merger, all of the issued and outstanding shares of stock
of Merger Sub will be converted into certain shares of preferred stock of Tower
Aggregator and cash as contemplated by the Merger Agreement, and SCI will
become the sole stockholder of Merger Sub. As a consequence of the Merger,
Tower Sub will become a wholly owned indirect subsidiary of Tower Aggregator.
B. In connection with the Merger, the applicable parties
are concurrently herewith entering into the Nextel Master Site Lease Agreement
(as hereinafter defined) pursuant to which Tower Sub will lease to the
Transferring Subsidiaries (as hereinafter defined) certain
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sites and related wireless communications tower or other transmission space and
related equipment, including the Merger Sites transferred indirectly by the
Transferring Subsidiaries to Tower Sub in accordance with the terms of the
Merger Agreement. The Nextel Master Site Lease Agreement shall from time to
time be supplemented with Site Schedules (as therein defined) to provide for
the lease of (i) certain additional sites owned or acquired by Tower Aggregator
and/or its Subsidiaries; (ii) the Constructed New Sites (as hereinafter
defined); and (iii) the Purchased New Sites (as hereinafter defined).
C. Under the terms of this Agreement, the parties shall
enter into an arrangement pursuant to which the Transferring Subsidiaries shall
offer Tower Sub certain opportunities relating to the construction or purchase
of additional communications sites which shall then be leased by the
Transferring Subsidiaries under the terms of the Nextel Master Site Lease
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1.1 DEFINED TERMS.
The following terms as used in this Agreement will have their
respective meanings indicated below:
"Actual New Sites" has the meaning set forth in Section
2.1(b).
"Affiliate" has the meaning ascribed to that term in Rule
12b-2 under the Securities Exchange Act of 1934, as amended.
"Agreement" has the meaning set forth in the Preamble.
"Alternate Equipment" has the meaning set forth in Section
2.5.
"Ancillary Agreements" means the Merger Agreement and all
other Ancillary Agreements as defined in the Merger Agreement other than this
Agreement.
"Architectural and Engineering Work" or "A&E" means, with
respect to each New Site, taking all of the following actions in compliance
with all applicable laws: (i) obtaining a geotechnical exploration report
which provides information about the site, and its subsurface conditions, and
provides general foundation recommendations for the proposed tower, (ii)
providing a professional engineer sealed tower foundation design for the site,
(iii) providing construction inspection and materials testing services during
construction of tower foundations, (iv) providing field testing and laboratory
reports of documented electrical resistance to ground for use by the electrical
engineer in designing the electrical grounding system, (v) preparing all
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necessary construction plans and drawings and (vi) providing field inspection
services.
"Carryover Amount" has the meaning set forth in Section
2.1(b).
"Claimant" has the meaning set forth in Section 3.15(c).
"Closing" has the meaning set forth in Section 3.3(a).
"Committed New Sites" has the meaning set forth in Section
2.1(d).
"Communications Act" means the Communications Act of 1934, as
amended.
"Communication Equipment" means wireless communication
receivers, transmitters, other antenna devices, and related equipment.
"Completion Notice" has the meaning set forth in Section
2.5(a).
"Constructed New Site" has the meaning set forth in Section
2.2(a).
"Construction Approvals" means all necessary approvals from
applicable governmental authorities relating to Site acquisition and
development, including, without limitation, building and FAA permits, zoning
approvals, and FCC approvals (if any).
"Construction Failure" has the meaning set forth in Section
2.3(f).
"Construction Period" has the meaning set forth in Section
2.3(a).
"Construction Schedule" has the meaning set forth in Section
2.3(a).
"Decline to Fund Notice" has the meaning set forth in Section
2.1(d).
"Defaulted New Sites" has the meaning set forth in 2.1(d).
"Deferred New Sites" has the meaning set forth in Section
2.1(d).
"Deferred Purchase Date" has the meaning set forth in Section
2.1(d).
"Dispute" has the meaning set forth in Section 3.15(a).
"End Date" has the meaning set forth in Section 2.6.
"Excluded Site" has the meaning set forth in Section 2.2(b).
"Executives" has the meaning set forth in Section 3.15(a).
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"Exercise Notice" has the meaning set forth in Section 3.4.
"Expected Build Territory" has the meaning set forth in
Section 2.1(b).
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"Final Approvals" means all Construction Approvals, together
with other necessary approvals from applicable governmental authorities, in
each case which are (i) not subject to an active appeal or challenge (in an
appropriate proceeding before the relevant reviewing or appellate body) and
(ii) has not been subject to such an active appeal or challenge for a period of
at least 60 days (or, if a shorter period is expressly prescribed by applicable
law, such shorter period), relating to the occupancy and use of a Site by a
Transferring Subsidiary, including, without limitation, a certificate of
occupancy, if required.
"Force Majeure" means, with respect to any party, any of the
following events: delays in zoning or permitting (other than delays resulting
from or occasioned by such party's pursuit of any modifications or supplements
to the zoning and permitting completed by the other party prior to delivery of
a Second Notice), strikes, lockouts, labor disputes, embargoes, flood,
earthquake, storm, dust storm, lightning, fire, and any other weather
conditions that prevent (according to the tower construction industry's
standard of prudence) construction for any calendar day(s) in excess of the
four "weather days" set forth in each Construction Schedule, epidemic, acts of
God, war, national emergency, civil disturbance or disobedience, riot,
sabotage, terrorism, threats of sabotage or terrorism, restraint by court order
or order of public authority, delays caused by or attributable to the actions
of the other party or any of its Subsidiaries or controlled Affiliates or the
failure of the other party to timely perform any action required by this
Agreement to be performed by such other party, and similar occurrences beyond
the reasonable control of such party, and such nonperformance shall be excused
for the period of time any such Force Majeure causes such nonperformance.
"HSR Act" has the meaning set forth in Section 3.4.
"Initial Notice" has the meaning set forth in Section 2.2(b).
"JVA" has the meaning set forth in Section 2.1(a).
"Measurement Period" has the meaning set forth in Section
2.1(d).
"Merger" has the meaning set forth in Recital A.
"Merger Agreement" has the meaning set forth in Recital A to
this Agreement.
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"Merger Sites" means the owned real estate or leasehold
interests, as applicable, and the communications towers or monopoles located
thereon, including the Tower Assets (but excluding any Communication Equipment)
associated therewith, described in the Merger Agreement and transferred to
Tower Sub at or prior to the closing of the Merger.
"Merger Sub" has the meaning set forth in Recital A.
"Minimum Purchase Commitment" has the meaning set forth in
Section 2.1(d).
"Minimum Specifications" has the meaning set forth in Section
2.2(c).
"Negotiation Period" has the meaning set forth in Section
3.15(a).
"New Sites" means all locations in the Territory for the
construction of new communications towers or monopoles for use by any
Transferring Subsidiary (including Tower Assets, but excluding any
Communication Equipment associated therewith) other than Merger Sites, and in
each case on which a Transferring Subsidiary would become a tenant (on terms
consistent with those set forth in the Nextel Master Site Lease Agreement).
"Nextel" has the meaning set forth in the Preamble.
"Nextel Master Site Lease Agreement" means the Nextel Master
Site Lease Agreement dated as of the date hereof, among Tower Sub, Landlord
Parties (as defined therein), and the Transferring Subsidiaries pursuant to
which the Merger Sites, and each other Site that either is or is deemed to be a
Constructed New Site or a Purchased New Site hereunder are leased by a
Transferring Subsidiary from Tower Sub.
"NonQualified Site" has the meaning set forth in Section
2.2(c).
"Offer Notice" has the meaning set forth in Section 3.4.
"Offeror" has the meaning set forth in Section 3.4.
"Owner's Title Policy" means an owner's policy of title
insurance which insures either the fee simple title or the leasehold interest
being conveyed in a Site, subject only to the Permitted Exceptions.
"Parent Co." has the meaning set forth in the Preamble.
"Partner" means Nextel Partners Operating Corp., a Delaware
corporation and any one or more of the direct or indirect subsidiaries of
Nextel Partners, Inc., a Delaware corporation, or any other entity in which it
has a direct or indirect equity or other equivalent ownership interest.
"Partner Area" means the "Territory" as defined in the JVA.
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"Permitted Exceptions" means as to any Site (i) title
encumbrances or exceptions set forth in the title commitment which do not
materially and adversely affect the intended use of the Site, such as, by way
of example and not of limitation, utility easements, and (ii) standard
preprinted exceptions to be set out in the Owner's Title Policy; and (iii) any
title encumbrances or exceptions identified in the title report delivered to
Tower Sub as part of the Second Notice.
"Person" means any individual, corporation, partnership,
limited liability company, firm, joint venture, association, joint stock
company, trust, unincorporated organization, governmental or regulatory body or
other entity.
"Preexisting Contract" means any agreement or commitment
(other than this Agreement) with any Person for the construction or sale of any
New Site within the Territory, to which either Nextel or any Transferring
Subsidiary is a party as of February 10, 1999, without giving effect to any
subsequent amendment or modification thereof, and which agreement or commitment
is listed in Section 6.13 of the Nextel Disclosure Statement to the Merger
Agreement.
"Proposed Tower Sub Co-location Site" has the meaning set
forth in Section 3.1(c).
"Purchase Agreement" means the agreement, substantially in the
form attached as SCHEDULE 8, pursuant to which a Transferring Subsidiary will
convey a Purchased New Site to Tower Sub.
"Purchased New Site" has the meaning set forth in Section
2.2(a).
"Qualifying Sites" has the meaning set forth in Section 2.6.
"Rules" has the meaning set forth in Section 3.15(c).
"SCI" has the meaning set forth in Recital A.
"SHI Merger Sub" has the meaning set forth in Recital A.
"Second Notice" has the meaning set forth in Section 2.2(b).
"Section 2.2(a) Notice" has the meaning set forth in Section
2.4.
"Site" means, individually, a Merger Site, a Site Under
Construction, a Constructed New Site, or a Purchased New Site.
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"Site Acquisition Work" means, with respect to each New Site,
taking all of the following actions in compliance with all applicable laws and
paying all costs associated therewith: (i) obtaining ownership of or leasehold
right to real property, together with such related or appurtenant real property
rights, as may be required for the construction on such real property of Tower
Assets and for the installation, operation and maintenance of Communication
Equipment pursuant to ownership documents, options or options and lease
agreements and related documents (provided that payment of rent under any such
lease agreements shall be the obligation of the applicable Transferring
Subsidiary for any Purchased New Site until the sale of same), complying with
Section 2.2(b), where applicable, after identifying potential sites within each
search ring, (ii) obtaining from a qualified surveyor a recent (i.e. prepared
or updated no more than six months prior to (x) the Second Notice, if any,
given by a Transferring Subsidiary to Tower Sub with respect thereto or (y) the
receipt of Construction Approvals, if no Second Notice is given) ground survey
depicting the boundaries and areas of the Site location, all easements, rights
of way and other matters affecting title thereto, any improvements thereon,
applicable setback lines, if any, information regarding flood plain location
and any encroachments affecting the Site, and stake out of same, (iii)
obtaining any necessary utility and access easements and all necessary consents
from the underlying owner or prime landlord, (iv) obtaining all FAA and FCC
approvals (if any) needed to construct Tower Assets on such Site, (v) preparing
all zoning drawings and obtaining all zoning approvals or designations
necessary to construct and operate Tower Assets on such Site, including
participation in all hearings and meetings necessary to accomplish same, and
all legal costs incurred in procuring such zoning approvals, (vi) obtaining an
environmental transaction screening (as defined by the American Society of
Testing and Materials) of such Site and a related report, which report shall be
addressed to the Transferring Subsidiary and Tower Sub, together with a Phase I
environmental site assessment and any follow up tests and remediation that may
be required and a National Environmental Policy Act assessment, (vii)
obtaining a title commitment or abstract for each New Site current within six
months of the Second Notice (if any), curing any title defects or objections
pertaining to such New Site and providing a title insurance policy, when
requested by Transferring Subsidiary, and (viii) recording documents as
reasonably required to evidence ownership or leasehold rights in and to such
New Site.
"Site Agreement" means a lease agreement or option agreement,
by and between Tower Sub (or, if a Transferring Subsidiary is performing or has
designated another party to perform Site Acquisition Work, by such Transferring
Subsidiary and assignable to Tower Sub), as lessee (or optionee), and certain
lessors (or optionors), for rights to certain portions of the lessor's or
optionor's land for the construction thereon of Tower Assets and installation
of Communication Equipment.
"Site Goal" has the meaning set forth in Section 3.3(a).
"Site Schedule" has the meaning set forth in the Nextel Master
Site Lease Agreement.
"Sites Under Construction" means sites under construction by
or on behalf of the Transferring Subsidiaries upon the consummation of the
Merger (such Sites Under Construction to become Purchased New Sites under this
Agreement).
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"Successor Entity" has the meaning set forth in Section 3.16.
"Tenant Facilities" has the meaning set forth in the Nextel
Master Site Lease Agreement.
"Term" has the meaning set forth in Section 3.2.
"Territory" means the United States of America.
"Third Party Site" has the meaning set forth in Section
3.1(c).
"Tower Aggregator" has the meaning set forth in the Preamble.
"Tower Assets" means a communications tower or monopole
structure, tower lighting, tower grounding system and fencing (and, as to
analog sites only, the shelter and concrete pad, if any), but does not include
Communication Equipment.
"Tower Sub" has the meaning set forth in the Preamble.
"Transferring Subsidiary" has the meaning set forth in the
Preamble.
Terms may be defined above in either their singular or plural
form, but may also be used in this Agreement in their other form not expressly
defined above.
1.2 CONSIDERATION.
As consideration for the rights to (a) purchase the Purchased
New Sites and construct the Constructed New Sites, (b) at the Transferring
Subsidiaries' option, provide Site Acquisition Work, construction services
and/or additional construction services as set forth on SCHEDULE 7, and lease
all New Sites, together with Proposed Tower Sub Co-location Sites that become
Qualifying Sites hereunder, to the Transferring Subsidiaries (including such
New Sites and Proposed Tower Sub Co-location Sites that become Qualifying Sites
hereunder as are located in the Partner Area), Tower Sub shall pay to the
Transferring Subsidiaries or their designees, concurrently with execution of
this Agreement, the sum of $105,000,000.00. The parties agree and acknowledge
that, if any of them seek damages by reason of any breach or violation of this
Agreement, such sum is not intended to constitute or represent either a minimum
required or a maximum permitted amount for purposes of any damage award, nor is
such sum intended to be accorded any relevance in determining what damage
award, if any, would be appropriate to remedy any particular violation or
breach hereof.
2. CONSTRUCTION AND PURCHASE OF NEW SITES
2.1 NEW SITES.
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(a) From and after the date hereof and until the End Date, each of
Nextel and the Transferring Subsidiaries agrees that neither they nor any of
their subsidiaries or controlled Affiliates shall contract with a third party
(including any Affiliate) for the construction of a New Site in the Territory,
without first complying with the provisions of this Article 2, except for any
New Site subject to a Preexisting Contract. Prior to the date of this
Agreement, each of Nextel and the Transferring Subsidiaries has provided Tower
Aggregator copies of all Preexisting Contracts. Nextel will designate as a
Transferring Subsidiary its subsidiaries or controlled Affiliates that propose
to (ix) construct Tower Assets at a New Site in the Territory or (x) acquire
Tower Assets located in the Territory and upon such designation, Nextel shall
cause such subsidiary or controlled Affiliate to become a party to, and bound
by, this Agreement. In addition, Nextel agrees that all New Sites to be
constructed in the Partner Area pursuant to and in accordance with Section 6.9
of the Joint Venture Agreement between Nextel WIP Corp., Nextel Partners, Inc.
and Nextel Partners Operating Corp. dated as of January 29, 1998 (as in effect
on February 10, 1999, and as subsequently amended in accordance with the next
sentence, the "JVA") shall be Purchased New Sites or Constructed New Sites for
all purposes of this Agreement. Nextel will not permit its subsidiary that is
a signatory party to the JVA to enter into any amendment, waiver, or
modification of the JVA that would be adverse to Tower Sub or Tower Aggregator,
or which would prevent, limit, or restrict the Transferring Subsidiaries from
performing their obligations under this Agreement, including, without
limitation, any amendment or modification of the JVA that would permit any
Person other than Nextel or any Transferring Subsidiary to construct New Sites
for Partner in the Partner Area during the Term without first obtaining the
written consent of Tower Sub thereto. The Parties hereto agree and acknowledge
that, in the event of any conflict between the terms of this Agreement and the
terms of Section 6.9 of the JVA, the latter shall be controlling. Nextel
represents and warrants that: (i) it has delivered to Tower Aggregator a true
and correct copy of the JVA as executed on January 29, 1999 and as in effect on
February 10, 1999, and (ii) other than the JVA and the Preexisting Contracts,
neither Nextel nor any of its Subsidiaries or controlled Affiliates is a party
to any agreement with any third party (including Partner or any Affiliates of
Nextel) (x) for the construction of any New Sites in the Partner Area, (y) that
would limit, restrict or conflict with Nextel's rights to construct New Sites
in the Partner Area, or (z) that would limit, restrict or conflict with
Nextel's agreement to treat all New Sites constructed in the Partner Area as
contemplated under this Agreement.
(b) Notwithstanding anything to the contrary contained herein, the
Transferring Subsidiaries shall have the right to locate any New Site within or
outside the Expected Build Territory (as defined below), and Tower Sub shall
not be required to construct or purchase any Discretionary Location Sites (as
defined below) except for such Discretionary Location Sites that Tower Sub
elects to construct or purchase as provided in this Section 2.1(b). As to any
calendar year (beginning with 1999), the parties agree that: (xi) the "Expected
Build Territory" shall be the areas shown in blue or in white on the map
attached as Exhibit A hereto (and whether any particular site, as identified by
latitude and longitude, is within or outside the Expected Build Territory may
be determined by reference to an electronic file which plots any identified
site with reference to the map, which file has been made available to the
parties to this Agreement), as
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such Exhibit A may be modified by mutual agreement of the Transferring
Subsidiaries and Tower Sub as a result of the annual review process described
in Section 2.1(c); (xii) the "Discretionary Location Sites" shall be those New
Sites to be located outside the Expected Build Territory during the relevant
calendar year that exceed the sum of (x) that number of New Sites that is 10%
(rounded to the nearest whole number) of the total number of New Sites expected
to be made available for construction or purchase by Tower Sub hereunder during
such calendar year plus (y) the Carryover Amount (as defined below) from prior
years, if any; provided, however, that Tower Sub shall not be obligated to
construct or purchase more than an aggregate of 170 Discretionary Location
Sites (excluding all Committed Discretionary Sites (as defined below)) during
the period beginning on the date hereof and concluding on the End Date; and
(xiii) the "Carryover Amount" shall be the number obtained by (A) subtracting
from (x) a number that is equal to 10% of the number of New Sites actually
constructed by or for the Transferring Subsidiaries hereunder during such
calendar year ("Actual New Sites") (y) the number of such Actual New Sites that
are located outside the Expected Build Territory for such calendar year;
provided that (1) the result of subtracting the number in clause (y) from the
number in clause (x) shall be rounded to the nearest integer and (2) if such
result is less than zero, it shall be deemed to be zero; and (B) adding to the
number derived in clause A the cumulative number of New Sites that constituted
the Carryover Amount for any prior calendar years. Until the End Date, the
Transferring Subsidiaries shall make available to Tower Sub for construction or
purchase all New Sites (including all Discretionary Location Sites), and Tower
Sub will in good faith consider whether it wishes to purchase or construct each
such New Site that is a Discretionary Location Site, and shall provide a
written response indicating whether it elects to purchase or construct each
such Discretionary Location Site within ten days of such Discretionary Location
Site being made available, or shall be deemed to have irrevocably elected not
to purchase or construct such Discretionary Location Site. If Tower Sub elects
to purchase or construct a Discretionary Location Site, it shall then be either
a Constructed New Site or a Purchased New Site hereunder, as applicable, and
shall be purchased and sold in compliance with Section 2.3 or Section 2.4
hereof, as appropriate. Any Discretionary Location Site which any Transferring
Subsidiary desires to have constructed or purchased but which Tower Sub does
not elect to construct or purchase in accordance with this subparagraph may be
constructed, further developed, held and/or transferred by the applicable
Transferring Subsidiary or any other controlled Affiliate of Nextel, free and
clear of any and all obligations and liabilities under or pursuant to this
Agreement or any of the Ancillary Agreements; provided, however, that such a
Discretionary Location Site shall not be a Qualifying Site (as defined in
Section 2.6). Until the End Date, the Transferring Subsidiaries shall make
available all New Sites in the Territory to Tower Sub except as otherwise
permitted pursuant to or under a Preexisting Contract.
(c) The Transferring Subsidiaries establish and revise their
digital wireless system deployment plans in their respective markets on an
ongoing basis with the primary goals of maximizing revenue and customer growth.
These plans include the deployment of additional transmitter sites in existing
markets to enhance system capacity or quality of system performance, the
deployment of such sites in contiguous areas to expand existing market coverage
areas to meet customer expectations and/or meet competition, and the deployment
of sites in new markets to expand the footprint of the digital network
(including Partners' proposed expansion of the Nextel network in smaller
markets located in the Partner Area). Such plans also contemplate logical
expansions of the coverage footprint to include highway corridors that
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connect existing and planned markets.
The deployment plan for 1999 has been developed in a manner
consistent with such business plans based on information currently known to the
Transferring Subsidiaries, and based on the overall strategic plans, direction
and orientation for Nextel's U.S. digital mobile network business currently in
place. The Transferring Subsidiaries do not expect that their future
deployment plans will be developed or implemented in a manner that is
materially different than the manner in which such plans have been developed
and implemented with respect to 1998 and 1999. However, the parties
acknowledge that the business and operating strategies of the Transferring
Subsidiaries are totally within the discretion of the Transferring Subsidiaries
and that changes in such strategies may significantly alter deployment plans.
Accordingly, the Transferring Subsidiaries do not have any obligation to Tower
Aggregator as to the manner in which future deployment and implementation plans
are developed.
Until the End Date occurs, the Transferring Subsidiaries and
Tower Sub agree to meet on an annual basis during the months of November or
December to discuss Nextel's tower build plan for the coming calendar year and
to establish an estimated number of New Sites to be constructed and/or
purchased during such calendar year (and, for each such meeting held prior to
the third anniversary hereof, the maximum number of New Sites to be constructed
and/or purchased in the coming Measurement Period as contemplated in Section
2.1(d) below). Such estimated number will be used for purposes of establishing
the numbers in subparagraph 2.1(b).
At each annual meeting contemplated above, the parties will
attempt to mutually agree on a new maximum number of New Sites to be
constructed and/or purchased for the coming calendar year (and, as contemplated
below, the maximum number of New Sites to be constructed and/or purchased in
the coming Measurement Period). If the parties mutually agree on a new maximum
number of New Sites for any Measurement Period, such number will replace the
number set forth in subparagraph 2.1(d) below for such Measurement Period. For
any Measurement Period as to which the parties do not agree on a new number,
the number set forth in subparagraph 2.1(d) below will control.
At such annual meetings, in addition to the build/deployment
plan for the coming calendar year (and, if relevant, Measurement Period), the
parties agree to discuss any deviations or significant variations in costs
noted by any party between the fixed prices or fees for various items or
categories set forth on SCHEDULE 2 to this Agreement and the actual costs
incurred, using the agreed-upon assumption that each fixed price or fee amount
is to represent the actual cost for that item or category plus 10%, on an
average basis. Any fixed price or fee line item which the parties mutually
agree does not accurately reflect the average actual cost plus 10% will be
adjusted by amendment to this Agreement.
(d) Notwithstanding anything to the contrary contained herein,
Tower Sub shall not be obligated under this Agreement to construct or purchase
more than an aggregate of 566 New Sites (as such number may be adjusted
pursuant to Section 2.1(c) and this Section 2.1(d)) during each of the calendar
years 1999, 2000 and 2001 (each such calendar year, a "Measurement Period").
As to each Measurement Period, 566 New Sites or such adjusted number derived in
accordance with Section 2.1(c), as appropriate, is referred to as the "Minimum
Purchase
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Commitment" for such Measurement Period. In the event the Transferring
Subsidiaries and Tower Sub deliver Second Notices during any Measurement Period
that contemplate that Tower Sub will be required to construct or purchase more
than the applicable Minimum Purchase Commitment during any such Measurement
Period, and Tower Sub either fails to respond within ten days of receipt or
delivery of the Second Notices or indicates in writing that it will not fund
the construction of or purchase all or a portion of such excess New Sites (a
"Decline to Fund Notice") during the relevant Measurement Period, any such
excess New Sites that the Transferring Subsidiaries elect to construct during
such relevant Measurement Period shall be constructed by Tower Sub or, at the
election of the Transferring Subsidiaries, constructed as they may indicate,
but in either such case such excess New Sites shall be constructed at the
expense of such Transferring Subsidiaries. If construction of any such excess
New Site is completed not more than three months before the end of such
relevant Measurement Period, Tower Sub will be obligated to purchase and will
purchase all of such completed excess New Sites on the first day of the next
Measurement Period or, in the case of the third Measurement Period, the day
after the last day thereof (the "Deferred Purchase Date"), unless (i) the
purchase of any such excess New Site would result in Tower Sub purchasing more
than the applicable Minimum Purchase Commitment during such next Measurement
Period or (ii) the End Date has occurred prior to the time such purchase is
required to be consummated (such excess New Sites as are required to be
purchased, the "Deferred New Sites"). In all other cases Tower Sub will have
the right, but not the obligation, to specify in its Decline to Fund Notice
that it irrevocably commits to purchase any or all of such excess New Sites not
later than the 90th day after construction thereof is completed (such excess
New Sites that Tower Sub so commits to purchase, the "Committed New Sites")).
The Transferring Subsidiaries hereby covenant and agree that (A) the Deferred
New Sites shall be retained by the Transferring Subsidiaries until the Deferred
Purchase Date, when they shall be sold to Tower Sub and (B) each Committed New
Site shall be retained by the Transferring Subsidiaries until the 90th day
after construction thereof has been completed (or such earlier date on which
Tower Sub elects to purchase such Committed New Site), when it will be sold to
Tower Sub. The Transferring Subsidiaries and Tower Sub agree that each
Deferred New Site and Committed New Site purchased and sold as contemplated in
the preceding sentence shall be a Purchased New Site hereunder, shall be
purchased and sold in compliance with Section 2.4 of this Agreement and shall
reduce the applicable Minimum Purchase Commitment for the Measurement Period
immediately following the Measurement Period in which such New Site became a
Deferred New Site or a Committed New Site, as the case may be. All excess New
Sites that are neither Deferred New Sites or Committed New Sites (and, without
limiting any other rights or remedies of the Transferring Subsidiaries
hereunder, any Deferred New Site or Committed New Site that Tower Sub is
obligated, but fails or refuses, to buy, as provided above; such New Sites, the
"Defaulted New Sites") may be further developed, transferred or retained by the
Transferring Subsidiaries free and clear of any and all obligations or
liabilities under or pursuant to this Agreement or any of the Ancillary
Agreements, and each Deferred New Site and Committed New Sites (including any
constituting Defaulted New Sites) also shall be deemed a Purchased New Site
that is also a Qualifying Site.
For example, if the Transferring Subsidiaries request Tower
Sub to construct 600
14
New Sites during the first Measurement Period and Tower Sub only agrees to fund
construction of 580 New Sites, the Transferring Subsidiaries (if they elect to
construct all 20 of such excess New Sites during the first Measurement Period)
shall bear the expense for the construction (whether by Tower Sub or otherwise
as specified by the Transferring Subsidiaries) of the 20 New Sites for which
Tower Sub declined to fund construction. Accordingly, if such 20 New Sites
constructed at the expense of the Transferring Subsidiaries were completed
within 90 days of the end of the first Measurement Period, all 20 of such New
Sites would be sold to Tower Sub as Purchased New Sites under this Agreement on
the first day of the second Measurement Period, and the Minimum Purchase
Commitment, i.e., the maximum number of New Sites that Tower Sub will be
obligated to construct or purchase at its own expense - during the second
Measurement Period would be reduced from 566 to 546 (subject to the parties
reaching mutual agreement, pursuant to Section 2.1(c), on a different number of
New Sites being the Minimum Purchase Commitment for such second Measurement
Period).
2.2 IDENTIFICATION OF SITE LOCATIONS.
(a) During the Term, before constructing or causing the
construction of any Tower Assets at any New Site for a Transferring
Subsidiary's own account and ownership or lease by such Transferring Subsidiary
(other than a New Site subject to a Preexisting Contract), such Transferring
Subsidiary will notify Tower Sub of the proposed New Site and inform Tower Sub
whether it wishes to have Tower Sub purchase (in which case the New Site will
be a "Purchased New Site") or construct (in which case the New Site will be a
"Constructed New Site") Tower Assets at such New Site according to the
remaining terms of this Article 2. Notwithstanding the foregoing, all Sites
Under Construction shall be Purchased New Sites hereunder. Within ten days of
the date hereof, the Transferring Subsidiaries shall notify Tower Sub of all
Sites Under Construction and provide the information set forth in Schedule 1
with respect to such Sites Under Construction.
(b) In connection with the development during the Term of each New
Site in the Territory, a Transferring Subsidiary shall provide Tower Sub, in
writing, the information set forth on SCHEDULE 1. The notice given in
accordance with this Section 2.2(b) is referred to as the "Initial Notice".
Upon receipt of the Initial Notice, Tower Sub shall have ten days to notify the
Transferring Subsidiary that the communication tower to be constructed on the
Site shall, if applicable zoning approvals can be obtained, be constructed at a
height to be specified by Tower Sub that shall be no less than the height
indicated in the Initial Notice. If the Initial Notice identifies the New Site
as a Constructed New Site, the Transferring Subsidiary shall also notify Tower
Sub as to whether such Transferring Subsidiary (including any third party
designated by such Transferring Subsidiary) or Tower Sub shall complete the
Site Acquisition Work. The fixed fee schedule for Site Acquisition Work, and
the fixed fee schedule for Architectural and Engineering Work, for any New Site
is set forth in SCHEDULE 2. The parties agree that if Tower Sub is requested
to perform Site Acquisition Work and thereafter Transferring Subsidiary elects
not to proceed with such Site, Transferring Subsidiary will pay Tower Sub the
applicable fee for Site Acquisition Work set forth on SCHEDULE 2.
Notwithstanding the foregoing, any costs incurred in the site acquisition
process as a result of undertaking an activity that would be considered
extraordinary in connection with site acquisition, such as, by way of example
and not of limitation, costs of balloon tests and EMF experts, shall not be
part of the fixed fee otherwise
15
due for Site Acquisition Work. Such costs and the need to incur same shall be
discussed between the parties in advance of such expenses being incurred, when
possible. Such costs shall be passed through at actual cost and paid in
accordance with Section 2.5(b) or as a part of the purchase price for each
Purchased New Site. The parties further agree that if Transferring Subsidiary
requests that Tower Sub construct such Site, Tower Sub will also provide A&E
for such Site (other than Sites where A&E is covered by a Preexisting
Contract). If the Transferring Subsidiary elects to perform the Site
Acquisition Work, it shall acquire the Site using such instruments of title or
lease agreements as meet with the prior approval of Tower Sub, which approval
shall not be unreasonably withheld or delayed by Tower Sub, and which shall be
deemed granted if no response is received within ten days of receipt by Tower
Sub of the proposed Site Agreement. Transferring Subsidiary shall perform such
due diligence investigations of said Sites as may reasonably be required by
Tower Sub. If the due diligence investigation of any Site discloses
information that would result in a breach of the representations and warranties
of the Purchase Agreement with respect to such Site, Tower Sub may notify the
Transferring Subsidiary of Tower Sub's election to refuse to construct or
purchase such Site (and a failure to respond within ten days of receipt of the
due diligence information shall be deemed a refusal to construct or purchase)
in which case such Site may be held, further developed and/or transferred by
the Transferring Subsidiaries or any other controlled Affiliate of Nextel free
and clear of any and all obligations and liabilities under or pursuant to this
Agreement or the Ancillary Agreements and such Site shall not be a Qualifying
Site (an "Excluded Site"). For any Site other than an Excluded Site, following
its completion of such work and the execution of a Site Agreement with respect
thereto, the Transferring Subsidiary shall provide Tower Sub notice of the
Transferring Subsidiary's completion of Site Acquisition Work, together with
the information set forth on SCHEDULE 3 (the "Second Notice") that is
applicable to such Site. In instances in which Site Acquisition Work is to be
performed by Tower Sub, following Tower Sub's completion of such work and the
execution of a Site Agreement with respect thereto, Tower Sub shall provide the
appropriate Transferring Subsidiary notice of Tower Sub's completion of Site
Acquisition Work, together with a Second Notice containing the information set
forth on SCHEDULE 3 that is applicable to such Site. Delivery of a Second
Notice by Transferring Subsidiary or Tower Sub will result in a binding
commitment of each of the Transferring Subsidiary and Tower Sub to enter into a
Site Schedule for such Site. Within five business days following its receipt
of such Second Notice, the Transferring Subsidiary shall notify Tower Sub of
the Tenant Facilities to be installed thereon by the Transferring Subsidiary.
(c) To qualify as a Constructed New Site or a Purchased New Site
hereunder, a New Site must meet the standards and minimum specifications set
forth on SCHEDULE 4 (the "Minimum Specifications") and be constructed pursuant
to the applicable terms of all related Construction Approvals and otherwise in
material compliance with all applicable laws, provided, however, that any New
Site which does not meet the Minimum Specifications but which has been jointly
agreed to prior to construction by Tower Sub and the Transferring Subsidiary
shall nonetheless qualify as a Constructed New Site or Purchased New Site, as
applicable. Within five business days after the receipt or delivery, as
applicable, of a Second Notice with respect to a Site
16
that does not satisfy each of the Minimum Specifications (a "NonQualified
Site"), Tower Sub shall provide the Transferring Subsidiary written notice of
Tower Sub's desire to (i) construct, own, and operate Tower Assets at the Site,
if the Transferring Subsidiary has proposed such NonQualified Site to be a
Constructed New Site; (ii) purchase the Tower Assets at the Site, if the
Transferring Subsidiary has proposed such NonQualified Site to be a Purchased
New Site following the development and construction thereof by Transferring
Subsidiary; or (iii) waive without condition any and all rights granted
hereunder with respect to such NonQualified Site, including, without
limitation, its rights to develop, construct, or purchase such Site. Tower Sub
shall be deemed to have elected the waiver described in clause (iii) if it does
not provide the Transferring Subsidiary with written notice of Tower Sub's
desire to construct or purchase such NonQualified Site, within such five
business day period described in the preceding sentence. If Tower Sub makes an
election under clause (i) or (ii) of this Section 2.2(c), such NonQualified
Site will be a Constructed New Site or Purchased New Site for all purposes
hereunder, notwithstanding the failure of such Site to meet the Minimum
Specifications. If, however, Tower Sub elects (or is deemed to have elected)
the waiver described in clause (iii) of this Section 2.2(c), such NonQualified
Site will not be deemed to be a Constructed New Site or Purchased New Site
hereunder and such Site shall not be a Qualifying Site (NonQualified Sites that
are subject to a waiver described in clause (iii) of this Section 2.2(c) being
referred to as "Released Sites"), and each such Released Site may be held,
further developed and/or transferred by the Transferring Subsidiaries or any
other controlled Affiliate of Nextel free and clear of any and all obligations
and liabilities under or pursuant to this Agreement or the Ancillary
Agreements.
2.3 CONSTRUCTED NEW SITES
(a) Tower Sub shall construct each Constructed New Site according
to the Minimum Specifications and such construction shall be completed by Tower
Sub as quickly as commercially reasonable but in any event within the
Construction Period defined herein. The term "Construction Period" means the 60
day construction period established in the schedule set forth on SCHEDULE 5
(the "Construction Schedule") beginning, (i) in the case of a Constructed New
Site in connection with which a Transferring Subsidiary has opted to perform
Site Acquisition Work, on the later of the date of delivery of the Second
Notice or receipt of a building permit; or (ii) in the case of a Constructed
New Site in connection with which a Transferring Subsidiary has opted to have
Tower Sub perform Site Acquisition Work, on the date all Construction Approvals
have been received. In each case, the Construction Period may be extended by
reason of an event of Force Majeure, to the extent such Force Majeure is a
direct cause of the construction delay, or by mutual agreement of the parties.
Notwithstanding the foregoing, in the case of Constructed New Sites with
respect to which Tower Sub is responsible for performing Site Acquisition Work,
in the event that the Transferring Subsidiary reasonably determines that Tower
Sub is not diligently pursuing the completion of Site Acquisition Work, the
Transferring Subsidiary shall have the right on 20 days written notice, to
assume from Tower Sub responsibility for Site Acquisition Work with respect to
such Site and to either reclassify such Site as a Purchased New Site or,
following completion of Site Acquisition Work, to submit a Second Notice to
Tower Sub and retain the designation of such Site as a Constructed New Site.
If, however, Tower Sub cures or otherwise remedies the alleged deficiencies in
pursuing the completion of the Site Acquisition Work within the notice period
given to Tower Sub, the
17
Transferring Subsidiary shall not be entitled to thereafter assume
responsibility for the Site Acquisition Work.
(b) Construction of a Constructed New Site by Tower Sub shall
fulfill the Minimum Specifications unless waived by the Transferring Subsidiary
and shall include: (i) all A&E; (ii) if necessary, construction of an access
road suitable for pedestrian and vehicular ingress and egress; and (iii) the
construction of a communication tower complete with tower grounding system,
fencing, and tower lighting (as necessary). Completion of construction shall
be certified by all governmental agencies required to give regulatory
certification and shall be subject to acceptance by the Transferring
Subsidiary, which acceptance will not be unreasonably withheld. Acceptance by
the Transferring Subsidiary shall be upon written notice from the Transferring
Subsidiary to Tower Sub that the Constructed New Site meets the Minimum
Specifications and the specifications set forth in the Second Notice. The
Transferring Subsidiary shall be permitted to designate representatives to have
supervised access to the construction site to review construction progress,
including, without limitation, grounding, utility runs and easements, shelter
location, and antenna platform. The Transferring Subsidiary shall give written
notice to Tower Sub of any construction defect at the time the Transferring
Subsidiary becomes aware of such defect. Upon completion of the Constructed
New Site, Tower Sub shall give the Transferring Subsidiary written notice of
completion, which shall include the information set forth on SCHEDULE 6A. The
Transferring Subsidiary shall have ten calendar days thereafter to give its
written acceptance or objections to construction, which objections shall be
limited to those not previously waived. In addition to the foregoing, if
requested by the Transferring Subsidiary, Tower Sub shall provide the services
set forth on SCHEDULE 7 on each Constructed New Site at the rates and on the
terms to be agreed to by the parties.
(c) As to each Constructed New Site, the Transferring Subsidiary
and Tower Sub shall execute a Site Schedule to the Nextel Master Site Lease
Agreement reflecting a Commencement Date (as defined in the Nextel Master Site
Lease Agreement) which is the earlier of the date of completion of construction
or the date of installation of the Tenant Facilities.
(d) [Reserved]
(e) In the event Tower Sub fails to complete construction of a
Constructed New Site within the Construction Period described above, then, a
Transferring Subsidiary shall have the right to recover from Tower Sub, and
Tower Sub shall, promptly following notice from the Transferring Subsidiary,
deliver to the Transferring Subsidiary the sum of $500.00 per day (not to
exceed $10,000.00 in the aggregate for each Site that is not constructed
according to schedule) subject to any delays caused by an event of Force
Majeure; provided, however, that the amount of such penalty sum paid by Tower
Sub hereunder with respect to a particular delayed Site shall offset, dollar
for dollar (but not below zero) the additional $5,000 payment that would
otherwise be payable by Tower Sub with respect to such Site pursuant to Section
2.3(f) below.
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(f) In the event Tower Sub fails to (i) complete the installation
of the Tower foundation for a Constructed New Site in accordance with the
Construction Schedule; (ii) complete the construction of a Constructed New Site
within the applicable period set forth in the Construction Schedule; or (iii)
otherwise fails in any material respect to perform its obligations hereunder
with respect to a Constructed New Site (any of the foregoing, a "Construction
Failure"), a Transferring Subsidiary may elect, at its sole option, on notice
to Tower Sub and subject to the cure right hereinafter described, to assume
control of the construction of such Constructed New Site. If the Transferring
Subsidiary wishes to exercise its right to assume control of the construction
of such Constructed New Site, it shall notify Tower Sub in writing and Tower
Sub shall have ten business days from such Notice to effectuate a cure. If
such cure is not effectuated within such ten business day period, promptly
following written notice with respect thereto, Tower Sub shall permit the
Transferring Subsidiary to assume control of, and complete construction of,
such Constructed New Site, and Tower Sub shall be responsible for all costs,
including overtime and all other expenses incurred in completing construction
of such Site as rapidly as possible, without any cap or restriction, but
subject to invoices to substantiate such costs, together with an additional
payment of $5,000, subject to offset as provided pursuant to Section 2.3(e)
above (such $5,000 amount, as reduced by offset where applicable, the "Penalty
Sum"). Upon completion, Tower Sub shall be deemed to have purchased all
improvements to such Constructed New Site completed by the Transferring
Subsidiary in exchange for the payment of all amounts contemplated by the
preceding sentence and such site will be a Constructed New Site and a
Qualifying Site.
(g) The payment provisions set forth in Sections 2.3(e) and (f)
are intended as the sole and exclusive liquidated damages for failure to
complete construction of a Constructed New Site within the Construction Period
(as contemplated by Section 2.3(e)) or a Construction Failure (as contemplated
by Section 2.3(f)) and, upon the receipt by the Transferring Subsidiaries of
payment in full of all amounts due pursuant to Sections 2.3(e) and 2.3(f), as
applicable, shall preclude any other remedy or recovery against Tower
Aggregator, Tower Sub, or any of their controlled Affiliates for or by reason
of any such failure, provided, however, that nothing in this Section 2.3(g)
shall limit or restrict Nextel's or the Transferring Subsidiaries' termination
rights pursuant to Section 3.2(c)(iii).
2.4 PURCHASED NEW SITES. If the Initial Notice identifies a New
Site as a "Purchased New Site" or if the Site is identified as a Site Under
Construction in the Notice provided pursuant to Section 2.2(a) (the "Section
2.2(a) Notice") and is, therefore, a Purchased New Site, the Transferring
Subsidiary that provided such Initial Notice or Section 2.2(a) Notice, as
applicable, may, but shall be under no obligation to, complete the development
and construction of such New Site or Site Under Construction. If the
Transferring Subsidiary elects to complete such development and to construct
such Site it shall, following its completion of Site Acquisition Work, provide
Tower Sub notice of its completion of such Site Acquisition Work, together with
a Second Notice containing the information set forth on SCHEDULE 3 that is
applicable to such Site and an identification of the Tenant Facilities to be
installed thereon by the Transferring Subsidiary. On notice to Tower Sub from
a Transferring Subsidiary of such Transferring Subsidiary's completion of any
Purchased New Site (including with such notice the information set forth on
SCHEDULE 6B), the parties, including Parent Co., shall execute a Purchase
Agreement in substantially the form set forth on SCHEDULE 8 providing for the
purchase and sale of such Site,
19
for a purchase price equal to the amount set forth on SCHEDULE 2, provided,
that if Parent Co. or Transferring Subsidiary is unable to make the
representations and warranties provided in the Purchase Agreement (or can only
make such representations and warranties by making disclosures in Schedules to
the Purchase Agreement that are not acceptable to Tower Sub, in its reasonable
determination) with respect to any Purchased New Site, Tower Sub may refuse to
purchase such Purchased New Site by providing written notice of such election
(including a brief summary of the reasons therefor) within five business days
of receipt of the applicable Schedules and such Purchased New Site will not
constitute a Qualifying Site, and the Transferring Subsidiaries or any other
controlled Affiliate of Nextel may further develop, hold or transfer any such
site that Tower Sub refuses to purchase, free and clear of any and all
obligations and liabilities under or pursuant to this Agreement or the
Ancillary Agreements. Closing on each completed Purchased New Site will occur
on a date to be mutually agreed by the parties within fifteen days after the
last business day of the month following the completion date, provided,
however, that, at Transferring Subsidiary's sole option, such closing date may
be advanced if necessary to achieve any of the Site Goal obligations set forth
in Section 3.3. Concurrently with the closing of the purchase and sale of each
Purchased New Site, Transferring Subsidiary will transfer such Purchased New
Site to Parent Co., Parent Co. will transfer such Purchased New Site to Tower
Sub and the appropriate Transferring Subsidiary and Tower Sub shall execute a
Site Schedule to the Nextel Master Site Lease Agreement reflecting such
completed Purchased New Site, all as further detailed in Section 2.5 hereof and
a Commencement Date that is the date of such closing. Concurrently therewith,
Parent Co. and the Transferring Subsidiary shall cause the applicable Site
Agreement, options, permits, zoning approvals, and other relevant Site
development items to be assigned to Tower Sub free and clear of all liens and
security interests (subject to Permitted Exceptions).
2.5 LEASED SPACE.
(a) Tower Sub shall notify the appropriate Transferring Subsidiary
15 days prior to the then anticipated completion of each Constructed New Site
(including the information set forth on SCHEDULE 6A; provided, however, that
the certificate of occupancy or equivalent permit will be provided when
required) and the appropriate Transferring Subsidiary shall notify Tower Sub 15
days prior to the then anticipated completion of each Purchased New Site
(including the information set forth on SCHEDULE 6B; provided, however, that
the certificate of occupancy or equivalent permit will be provided when
required (each, a "Completion Notice") and, (i) within five days after receipt
of such Completion Notice from Tower Sub or (ii) concurrently with the delivery
of its Completion Notice to Tower Sub, the appropriate Transferring Subsidiary
shall notify Tower Sub of the number of antennas (or lines) on the constructed
tower and the location thereon that such Transferring Subsidiary desires to
install equipment and of the associated space that the Transferring Subsidiary
will require for equipment shelters. If a Transferring Subsidiary designates
antennas (or lines) or a height of the installation, that is different than
that set forth in the Second Notice or response to a Second Notice provided by
Tower Sub (the "Alternate Equipment"), Tower Sub shall allow the Transferring
Subsidiary to use such other or additional space on and in the Tower Assets as
is necessary to operate the Alternate Equipment, subject to available capacity
and space, on the terms and conditions set forth in the Nextel Master Site
Lease Agreement.
20
(b) Upon the execution of the applicable Site Schedule to the
Nextel Master Site Lease Agreement reflecting the inclusion of each Constructed
New Site and upon closing as to each Purchased New Site, Tower Sub shall pay to
the appropriate Transferring Subsidiary an amount equal to the fixed fee for
the Site Acquisition Work set forth on SCHEDULE 2, for all Constructed New
Sites and Purchased New Sites for which Transferring Subsidiary has performed
(or has arranged for a party other than Tower Sub to perform) the Site
Acquisition Work. The Transferring Subsidiary shall indemnify and hold Tower
Sub harmless for any payment demands by contractors or other persons performing
services in connection with the Site Acquisition Work and, if applicable, with
respect to Purchased New Sites, A&E, performed by or arranged (with parties
other than Tower Sub) through the Transferring Subsidiary.
(c) In addition to the Merger Sites, Sites Under Construction,
Constructed New Sites, and Purchased New Sites, Tower Sub or the relevant
Subsidiary or controlled Affiliate of Tower Aggregator shall, upon the request
of a Transferring Subsidiary, enter into Site Schedules to the Nextel Master
Site Lease Agreement, at lease rates determined in accordance with the rental
rates specified therein, and subject only to space availability, for space
requested by the Transferring Subsidiary on any communications sites or towers
currently owned, or hereafter acquired, by Tower Aggregator or any Subsidiary
or controlled Affiliate of Tower Aggregator in the Territory and such a Site
will be a Qualifying Site. Tower Aggregator shall cause its Subsidiaries and
controlled Affiliates to take such action as shall reasonably be required to
enable Tower Sub to comply with its obligations under this Section 2.5.
2.6 END DATE. For purposes hereof, the "End Date" shall be the
earlier of (a) the fifth anniversary hereof or (b) the date on which the sum of
the number of all Constructed New Sites (including any Constructed New Site
that fails to satisfy the Minimum Specifications but which has been accepted by
the appropriate Transferring Subsidiary), Purchased New Sites, including
Purchased New Sites which are Sites Under Construction (including Purchased New
Sites that fail to satisfy the Minimum Specifications but which have been
agreed to by Tower Sub), and all Proposed Tower Sub Co-location Sites as to
which a Site Schedule is delivered, equals or exceeds 1700 in the aggregate,
with such sum being calculated for all such Sites for which a Site Schedule has
been delivered by the applicable Transferring Subsidiary and as to which the
Commencement Date has occurred, plus (without double counting) all Sites
otherwise deemed to be Qualifying Sites under Sections 2.1(d), 2.4, this
Section 2.6, and 3.1(c) hereof (all such Sites described in this clause (b)
collectively referred to as "Qualifying Sites"). A Constructed New Site, with
respect to which a Transferring Subsidiary has exercised its rights under
Section 2.3(f), shall be deemed a "Constructed New Site" and a "Qualifying
Site," notwithstanding that a Site Schedule to the Nextel Master Site Lease
Agreement may not have been executed with respect thereto. The obligations of
the parties hereto as set forth in Section 2.1(a) hereof shall terminate on the
End Date. Notwithstanding the occurrence of the End Date, all applicable
financial obligations of the parties under the terms hereof shall continue
until paid in full and, subject to such payment, shall in all circumstances
terminate on the sixth anniversary hereof.
3. MISCELLANEOUS TERMS
3.1 CO-LOCATION.
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(a) Prior to executing any lease for space on any Site with a
Person who owns or has access to other communication sites (including without
limitation communications towers or monopoles), Tower Sub shall propose for
inclusion in such lease a requirement that such Person grant to the
Transferring Subsidiaries the right, for each Site that Tower Sub makes
available to such Person, to locate the Transferring Subsidiaries' equipment at
one other site that such Person owns or has access to. Such proposal shall
provide that the Transferring Subsidiaries' right to use any other site made
available by the other Person shall be on commercially reasonable terms and
shall be subject to space availability at such site. The only obligation of
Tower Sub pursuant to this Section 3.1(a) shall be the obligation to make such
proposal in good faith and Tower Sub is under no obligation to negotiate such
proposal on Transferring Subsidiaries' behalf or in any way deliver the
agreement of such Person to such proposal.
(b) The Transferring Subsidiaries shall be permitted to disclose
to any other Person the potential for co-location at any Site, subject to space
availability, upon the execution of Tower Sub's standard commercial lease (at
market rates), and further provided that the proposed installation shall not
exceed the structural and wind-loading capacity of the tower and the proposed
equipment does not cause interference with any then existing occupants of the
tower. At the request of a Transferring Subsidiary, Tower Sub shall negotiate
in good faith with any such other Person identified by such Transferring
Subsidiary.
(c) If, following submission of an Initial Notice identifying a
Constructed New Site or a Purchased New Site with respect to which a
Transferring Subsidiary has requested that Tower Sub be responsible for the
performance of Site Acquisition Work, Tower Sub identifies a communication site
owned by it or an Affiliate controlled by Tower Aggregator (a "Proposed Tower
Sub Co-location Site") or by a third party (a "Third Party Site"), which meets
the Minimum Requirements and specifications of such Initial Notice and is
available for co-location of Transferring Subsidiary Communication Equipment,
Tower Sub shall so notify such Transferring Subsidiary. If such Transferring
Subsidiary enters into a Site Schedule pursuant to the Nextel Master Site Lease
Agreement pursuant to which such Transferring Subsidiary agrees to lease space
on a Proposed Tower Sub Co-location Site, such Site shall be deemed to be a
Qualifying Site. The appropriate Transferring Subsidiary shall pay to Tower
Sub the fixed fee for Site Acquisition Work for Co-location Sites as set forth
on SCHEDULE 2 in the event that such Transferring Subsidiary leases space on a
Third Party Site. Tower Sub shall indemnify and hold Nextel and the
Transferring Subsidiaries harmless for any payment demands by contractors and
other persons hired by Tower Sub to perform services in connection with the
Site Acquisition Work for Third Party Sites and Proposed Tower Sub Co-location
Sites.
3.2 TERMINATION.
(a) This Agreement shall be effective as of the date hereof and,
subject to the last sentence of Section 2.6, shall continue in effect until the
End Date, unless earlier terminated as provided herein (the "Term").
(b) Tower Sub may terminate this Agreement prior to the end of the
Term by written notice given to Nextel upon the occurrence of either of the
following events:
22
(i) the insolvency of Nextel or a Transferring
Subsidiary, suffering or committing any act of insolvency, or
the inability of Nextel or a Transferring Subsidiary to pay
its debts when due; or
(ii) Nextel's or a Transferring Subsidiary's liquidation,
whether voluntarily or involuntarily, or the appointment for
it of a receiver or liquidator.
(c) Nextel, on behalf of the Transferring Subsidiaries, may
terminate this Agreement prior to the end of the Term by written notice given
to Tower Sub upon the occurrence of any of the following events:
(i) the insolvency of Tower Aggregator or Tower Sub,
suffering or committing any act of insolvency, or the
inability of Tower Aggregator or Tower Sub to pay its debts
when due;
(ii) Tower Aggregator's or Tower Sub's liquidation,
whether voluntarily or involuntarily, or the appointment for
it of a receiver or liquidator; or
(iii) at or after the end of any calendar year, the
Transferring Subsidiaries have, with respect to such calendar
year, exercised their rights to recover the penalty payment
described under Section 2.3(e) and/or elected to take over
construction of a Constructed New Site under Section 2.3(f),
for more than 10% of the total number of Constructed New Sites
during such calendar year.
(d) Either Tower Sub or any Transferring Subsidiary may terminate
this Agreement in the event the other party is in breach of an obligation to
pay money or is in breach of a material nonmonetary obligation under this
Agreement (unless the breach is waived by the non-breaching party) and fails to
cure such breach (i) in the case of breach of an obligation to pay money,
within ten days after written notice has been served on the breaching party by
the non-breaching party indicating the nature of the breach or purported breach
and the dollar amount due, or (ii) in the case of a material nonmonetary breach
that remains uncured, (x) for 30 days after written notice of the breach, or
(y) if cure is not possible within such 30 day period, for 45 days after
written notice of the breach, provided, the breaching party continues to
exercise reasonable diligence in effectuating a cure; provided, further, that a
Transferring Subsidiary may not terminate this Agreement under this Section
3.2(d)(ii) if such Transferring Subsidiary is relying upon the occurrence of
the events specified in Section 3.2(c)(iii) (which is intended to be the
exclusive termination provision in connection with the occurrence of such
events). In each case, the written notice must expressly specify the nature of
the breach or purported breach and the non-breaching party's intention to
terminate this Agreement if the breach is not timely cured. No termination
pursuant to this Section 3.2(d) shall take effect until a formal notice of
termination has been delivered in writing to the party committing such breach
or purported breach after the expiration of the applicable ten, 30 or 45 day
period as provided above, and then only if cure of such breach or purported
breach has not been effectuated prior to the tenth day
23
following delivery of such formal notice of termination.
(e) The termination of this Agreement shall not discharge, affect,
or otherwise modify the rights and obligations of the parties under this
Agreement which, by their terms and/or express intent, may require or
contemplate performance subsequent to any such termination, including, without
limitation, with respect to the completion of construction or sale and purchase
of any Constructed New Sites or Purchased New Sites for which Final Approvals,
the execution of Site Schedules, and/or closing of such purchase and sale
remain outstanding. In the event that this Agreement is terminated, all rights
and obligations of the Transferring Subsidiaries and Tower Sub set forth in the
executed Nextel Master Site Lease Agreement shall remain in full force and
effect, as provided therein.
(f) In the event that this Agreement is terminated, the
terminating party's right to pursue all legal (and equitable) remedies for
breach of contract and damages (and specific performance) accruing or occurring
prior to the effective date of such termination shall survive such termination
unimpaired, except as provided and limited by the provisions of Sections
2.3(e), 2.3(f), 2.3(g), 3.2 (e), 3.3 (b), and 3.3 (c) of this Agreement.
3.3 MINIMUM TOWER COMMITMENT.
(a) Beginning on the first day of the 37th month following closing
of the Merger (the "Closing") and ending on the first day of the 72nd month
following the Closing, if the Transferring Subsidiaries have not made available
to Tower Sub at least the Cumulative Qualifying Site Goal according to the
schedule set forth below ("Site Goal"), the Transferring Subsidiaries will pay,
as liquidated damages in accordance with Section 3.3(c), a monthly amount to
Tower Sub based on the shortfall from the Site Goal for that particular month.
The Site Goal for the 37th through 72nd month following
Closing will be as follows:
Month(s) Cumulative Qualifying Site Goal
-------- -------------------------------
37th through 48th 900
49th through 60th 1300
61st through 72nd 1700
(b) The liquidated damages payment in accordance with Section
3.3(c), if any, for each month will be equal to the shortfall from the Site
Goal (e.g. in month 37, 900 minus actual number of Qualifying Sites multiplied
by $1,600). In no event will the Transferring Subsidiaries have any other
obligation or damages as a result of failing to meet the Site Goal or minimum
commitment except as set forth in subparagraph (c) below. Notwithstanding the
foregoing, to the extent any such shortfall results from Force Majeure with
respect to any proposed Sites, the assessment and payment of such liquidated
damages with respect to such proposed Sites shall be suspended for the duration
of the period of time when any such Force Majeure prevents or prohibits any
such proposed Site from being a Qualifying Site.
24
(c) The provisions set forth in this Section 3.3 are intended as
sole and exclusive liquidated damages for failure to achieve the Site Goal and,
upon the receipt by Tower Sub of payment in full of all amounts due pursuant to
this Section 3.3, shall preclude any other remedy or recovery against Nextel,
any Transferring Subsidiary, any other controlled Affiliate of Nextel or
Partner for or by reason of the denial to Tower Sub of the opportunity to
construct and/or to purchase, and to lease to the Transferring Subsidiaries, to
satisfy the Site Goals, except in the event of breach of the obligation to
provide to Tower Sub the exclusive opportunity to construct and/or purchase the
New Sites until the End Date, all subject to the terms and conditions set forth
herein, in which event Tower Aggregator and Tower Sub may pursue any damages
that may be suffered by Tower Aggregator and Tower Sub as a result of such
breach of the exclusivity obligation described in Section 2.1.
3.4 RIGHT OF FIRST REFUSAL. The Transferring Subsidiaries hereby
grant to Tower Sub, during the Term of this Agreement, a personal and
non-assignable right of first refusal to acquire any communications towers or
monopoles acquired by such entities or any of their or Nextel's controlled
Affiliates in the Territory after the date hereof upon a subsequent sale or
assignment thereof to an entity that is not an Affiliate of Nextel, provided,
however, that the foregoing right of first refusal shall not apply to (a) a
sale of the capital stock or all or substantially all of the assets of Nextel
or (b) any Site or related Tower Assets which are released from any and all
obligations and liabilities under or pursuant to this Agreement and the
Ancillary Agreements, as provided herein. If, at any time, Nextel or any
Transferring Subsidiary (for purposes of this Section 3.4, the "Offeror")
wishes to transfer any communications towers or monopoles in a transaction that
is subject to the right of first refusal granted in the preceding sentence,
such communications towers or monopoles shall first be offered to Tower Sub.
The Offeror shall send written notice of the offer (the "Offer Notice") to
Tower Sub, which Offer Notice shall state that the Offeror proposes to effect a
transfer of communications towers or monopoles (and shall include a list of the
location and type of such communications towers or monopoles) and set forth the
terms and conditions of the offer. Upon receipt of such Offer Notice, Tower
Sub shall be entitled to purchase all, but not less than all, of the offered
communications towers and monopoles upon the terms and conditions set forth in
the Offer Notice. The right of first offer shall be exercisable by delivery of
irrevocable written notice of exercise (the "Exercise Notice") by Tower Sub to
Offeror within 30 days after receipt of the Offer Notice. If Tower Sub shall
fail to respond to Offeror within such 30 day period, such failure shall be
regarded as a decision not to deliver an Exercise Notice, and a waiver of the
rights of first refusal as to the transaction described in the relevant Offer
Notice, by Tower Sub. The closing of any purchase of such communications
towers or monopoles by Tower Sub pursuant to an Exercise Notice timely
delivered under this Section 3.4 shall be held at the principal office of the
Offeror on or before the 30th day following delivery to the Offeror by Tower
Sub of its Exercise Notice (or such later time as may be necessary to comply
with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act")), or at such other time and place as the parties to the transaction
may agree. Notwithstanding anything to the contrary contained in this Section
3.4, if Tower Sub does not timely deliver an Exercise Notice, or, if delivered
timely, fails to consummate the relevant purchase transaction as to all of the
relevant offered communications towers or monopoles within the period specified
above, the Offeror may transfer to any third party buyer all or a portion of
the relevant communications
25
towers or monopoles for a purchase price that is no lower than one hundred
percent (or the relevant pro-rata percentage thereof if less than all of the
communications towers or monopoles are being sold) of that stated in the Offer
Notice; provided, however that such transfer is bona fide and made not later
than (i) 120 days from the date of the relevant Offer Notice and (ii) the date
which is ten days after the expiration or waiver of any applicable waiting
period pursuant to the HSR Act as to any such transaction with a third party
that is subject to the notice and filing requirements of the HSR Act.
3.5 NOTICES. All notices and other communications among the
parties shall be in writing and shall be deemed to have been duly given when
(c) delivered in person, or (d) five days after posting in the United States
mail having been sent registered or certified mail return receipt requested, or
(e) delivered by a reputable overnight delivery service, addressed as follows:
Notices to Nextel or any Transferring Subsidiary shall be
addressed as follows:
c/o Nextel Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Contracts Administrator
with a copy to:
Nextel Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: General Counsel
Notices to Tower Aggregator or Tower Sub shall be addressed as
follows:
SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx
Xxxx, XX 00000
Attn: Contracts Management
and
SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx
Xxxx, XX 00000
Attn: General Counsel
26
Any party may, from time to time, change its address for Notices by providing
the other parties with prior written Notice in the manner set forth above.
3.6 CONSTRUCTION OF AGREEMENT. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware except to
the extent the laws of the jurisdictions where property is located govern.
This Agreement, together with the Merger Agreement, the Nextel Master Site
Lease Agreement, the Security and Subordination Agreement and any Purchase
Agreement, embodies the entire agreement and understanding among each of the
Transferring Subsidiaries, Parent Co., Nextel, Tower Aggregator, and Tower Sub
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings among any Transferring
Subsidiary, Parent Co., Nextel, Tower Aggregator, and Tower Sub, oral or
written, relative to the subject matter of this Agreement.
3.7 WAIVERS; MODIFICATIONS. No waiver or modification of any
provisions of this Agreement shall be effective against a party hereto unless
it is set forth in a writing signed by each party. No waiver of any breach of
any provision of this Agreement shall be deemed a waiver of any other breach of
the same provision or of any other provision hereof, unless expressly so stated
in the writing setting forth such waiver.
3.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. No party hereto may make any assignment of this Agreement or any
of its rights or interests herein without the prior written consent of the
other; provided, however, that any party hereto may (a) assign this Agreement
or any of its rights or interests hereunder to any Affiliate, or, (b)
collaterally assign, mortgage, pledge, hypothecate, or otherwise collaterally
transfer without consent its interest in this Agreement to any financing entity
or agent on behalf of any financing entity, to whom a party hereto or any
Affiliate (i) has obligations for borrowed money or in respect of guaranties
thereof, (ii) has obligations evidenced by bonds, debentures, notes, or similar
instruments, or (iii) has obligations under or with respect to letters of
credit, bankers acceptances and similar facilities, or in respect of guaranties
thereof. Anything in this Section to the contrary notwithstanding, no
assignment, delegation, or pledge of this Agreement or any rights or interests
hereunder shall relieve the assignor of any liability or obligation hereunder.
The parties hereby agree that no Person not a party to this Agreement shall
have any rights or be entitled to any benefits under this Agreement.
3.9 INTERPRETATION. The headings in this Agreement are for
reference only and shall not affect the interpretation of this Agreement.
Whenever the context requires, words used in the singular shall be construed to
include the plural and vice versa, and pronouns of any gender shall be deemed
to include and designate the masculine, feminine or neuter gender. Unless
otherwise stated, references to Sections or Schedules refer to the Sections of
and Schedules to this Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
27
3.11 CONFIDENTIALITY. Except as otherwise required by law, the
parties hereto shall keep confidential the specific terms and provisions of
this Agreement including, without limitation, all Exhibits and Schedules
hereto. All press releases or other public communications of any nature
whatsoever relating to the transactions contemplated by this Agreement, and the
method of the release for publication thereof, shall be subject to the mutual
prior approval of Nextel and Tower Aggregator, which approval shall not be
unreasonably withheld. In the event any party is required by law to disclose
any term of this Agreement, it shall notify the other parties and the parties
shall cooperate to obtain (to the extent practicable) confidential treatment
for the matters disclosed.
3.12 REMEDIES. Each party's obligation under this Agreement is
unique. Except as expressly provided in the case of the payment of liquidated
damages pursuant to (a) Section 3.3(c) by reason of the failure to achieve Site
Goals as contemplated therein, or (b) Section 2.3(g) by reason of the failure
to complete construction of a Constructed New Site within the Construction
Period or by reason of a Construction Failure as contemplated therein, if any
party should fail to perform its respective obligations under this Agreement,
the parties acknowledge that it would not be possible to measure adequately the
resulting damages, and accordingly, the other party or parties, in addition to
any other available rights or remedies provided herein, shall be entitled to
specific performance of its or their rights under this Agreement, and the
parties expressly waive the defense that damages will be adequate.
3.13 ATTORNEYS' FEES. The prevailing party in any legal or
equitable action shall be entitled to recover its attorneys fees and expenses
in addition to any other damages or other remedy.
3.14 SURVIVAL. This Agreement shall survive the Closing as to any
given Merger Site but shall terminate as set forth in Section 3.2.
3.15 DISPUTE RESOLUTION.
(a) The parties shall attempt in good faith to resolve any
dispute, controversy, or claim ("Dispute") arising out of or relating to this
Agreement promptly by negotiations between representatives of senior management
(the "Executives") who have authority to settle the Dispute. Any party may
give the other parties written notice of any Dispute not resolved in the normal
course of business. Within 20 days after delivery of such a notice, Executives
of the parties involved in the Dispute who have authority to settle the Dispute
shall meet at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary, to attempt to resolve the Dispute. If any
party intends to be accompanied at a meeting by an attorney, the other involved
parties shall be given at least three business days' notice of such intention
and may also be accompanied by an attorney. If the Dispute has not been
resolved within 30 days after such notice, unless extended by the agreement of
the parties involved in the Dispute in writing (the "Negotiation Period"), any
party may at any time within 30 days after the end of the Negotiation Period
initiate mediation of the Dispute in New York, New York, in accordance with the
Center for Public Resources Model Procedure for Mediation of Business Disputes.
(b) If the Dispute has not been resolved within 60 days of the
initiation of mediation,
28
or if no party elects to commence mediation within the time specified in
paragraph (a) above, the Dispute will be subject to arbitration as provided in
Sections 3.15(c) and (d). All negotiations and mediation pursuant to Sections
3.15(a) and (b) are confidential and will be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence for
United States Courts and comparable state laws.
(c) Upon the expiration of the Negotiation Period or unsuccessful
mediation, any party seeking relief (the "Claimant") may serve a demand for
arbitration in accordance with the Center for Public Resources Non-Administered
Arbitration Rules (the "Rules") in which, in addition to any other requirements
of those Rules, the Claimant states the specific nature of the claimed breach
and the relief sought, and demands a determination by the arbitrators of the
parties' rights together with any relief sought. The place of arbitration will
be New York, New York unless all of the parties to the arbitration otherwise
agree. Three arbitrators will be chosen, and the proceedings conducted, in
accordance with the Rules, except that (i) the parties shall choose three
arbitrators through a self-administered process of striking names from a list
of potential arbitrators and shall not employ the method provided for in the
Rules, (ii) the rules of evidence employed in the federal courts at the time
will apply, and (iii) discovery will be permitted in accordance with the
Federal Rules of Civil Procedure for the United States District Courts. The
decision of the arbitrators will be final and binding on the parties to the
maximum extent permitted under applicable law, and a final judgment may be
entered on the award in any court of competent jurisdiction.
(d) A court of competent jurisdiction, upon application from any
party to the Dispute, may relieve the parties of their duty to arbitrate
Disputes in whole or in part, or may stay any arbitration hereunder in whole or
in part, if ongoing litigation between one or more of the parties and a third
party (or parties) involves issues of fact or law common with those subject to
arbitration hereunder and there exists the possibility of inconsistent
judgments if such relief is not granted.
(e) Each party shall bear its own costs and expenses incurred in
connection with any Dispute, including, without limitation, the fees of its
attorneys, unless the arbitrators otherwise decide, in which case such costs
and expenses shall be borne by the parties in the manner determined by the
arbitrators.
[The balance of this page is intentionally blank.]
29
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
NEXTEL COMMUNICATIONS, INC. NEXTEL COMMUNICATIONS OF THE
MID-ATLANTIC, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
----------------------- ----------------------------
Title: Title:
------------------------ -----------------------------
NEXTEL OF CALIFORNIA, INC. NEXTEL OF NEW YORK, INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
----------------------- ----------------------------
Title: Title:
------------------------ -----------------------------
NEXTEL OF TEXAS, INC. SPECTRASITE HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
----------------------- ----------------------------
Title: Title:
------------------------ -----------------------------
NEXTEL SOUTH CORP. TOWER ASSET SUB, INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
----------------------- ----------------------------
Title: Title:
------------------------ -----------------------------
NEXTEL WEST CORP. TOWER PARENT CORP.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
----------------------- ----------------------------
Title: Title:
------------------------ -----------------------------
